Shri Lalit Prasad vs The Managing Director, Food ...
2015 Latest Caselaw 2929 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No. 3255/1998
%                                                   13th April, 2015

SHRI LALIT PRASAD                                         ..... Petitioner

                          Through:       Ms. Gasmini Malik and Mr. Prakash
                                         Gautam, Adv.

                          versus

THE MANAGING DIRECTOR, FOOD CORPORATION OF INDIA
                                      ..... Respondent

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition filed under Article 226 of the Constitution

of India, petitioner, an employee of the respondent-Food Corporation of

India (FCI) impugns the orders passed against him by the departmental

authorities; of the Disciplinary Authority dated 30.1.1989, Appellate

Authority dated 12.5.1994 and mercy appeal dismissal order dated

23.4.1997. Disciplinary Authority imposed the punishment of reduction of

pay-scales in three stages with cumulative effect and which penalty has been

reduced by the Appellate Authority as not to have cumulative effect.

2. At the outset, I must state that the present petition filed in the

year 1998 was liable to be dismissed on the ground of being barred by delay

and laches, inasmuch as, there existed no provision in the service rules for

filing a further challenge to the order passed by the Appellate Authority on

12.5.1994, and therefore the cause of action had accrued when the petitioner

received the order of the Appellate Authority dated 12.5.1994 and this writ

petition was filed on 26.5.1998 i.e after a period of about four years on

receipt of the order of the appellate authority dated 12.5.1994. It has been

held by the Supreme Court in the recent judgment in the case of State of

Orissa and Anr. Vs. Mamata Mohanty (2011) 3 SCC 436 that though the

Limitation Act, 1963 does not apply to a writ petition under Article 226 of

the Constitution of India but principles of the prescribed period of limitation

would apply. This is so specifically held in para 52 of the judgment. The

argument of the counsel for the petitioner placing reliance upon Section 14

of the Limitation Act does not help the petitioner because for time taken in

any other proceedings to be excluded, the petitioner must have proceeded

bonafidely in the other proceedings, but once there was no provision for

filing a further challenge to the order of the Appellate Authority before the

department, the action of the petitioner in filing a challenge to the order of

the Appellate Authority before the Departmental Authority cannot be said to

be bonafide. Be that as it may, I have heard the counsel for the petitioner on

merits and even on merits the petitioner has no case.

3. The charge against the petitioner was that the respondent had

secreted the excess sugar stock, beyond what was available and to be

standardized by putting in gunny bags, and since the petitioner had intention

to take away the same and in furtherance of which he had put the excess

stock in gunny bags, but, on coming to know of the fact that the same would

be discovered by a raiding team which was coming, the petitioner along with

another employee Sh. Prem Sagar emptied those extra bags by loading the

excess sugar in the extra gunny bags within the gunny bags which were

already standardized and stacked by the respondent-Corporation. The excess

sugar beyond the prescribed limit in the standardized and stacked gunny

bags, was discovered by the raiding team and hence the petitioner was issued

the charge-sheet dated 25.8.1987 and the imputation of charges read as

under:-

"STATEMENT OF IMPUTATIONS OF MISCONDUCT OF MISBEHAVIOUR IN SUPPORT OF THE ARTICLES OF CHARGES FRAMED AGAINST SHRI LALIT PRASAD, ASSTT. GRADE. II (DEPOT). FSD, NEW PUSA (CTO). NEW DELHI.

Shri. Lalit Prasad, AG II(D) was working as joint custodian of Sector C (including Foundary Shed) FSD, CTO, New Delhi during the period May & June, 1987.

On receipt of some verbal complaint, a Regional Squad Comprising of S/Shri I.J.Rajput, D1(V&S), K.P.K. Nair, DM(Admn) of Regional office and K.samu, Distt. Manager (Incharge) conducted special physical verification on 19 and 20.5.87 of stocks of levy sugar stored in Foundary Shed under the charge of S/Shri Prem Sagar, AG-I(D) and Lalit Prasad, AG-II(D). The stack No. FS-20 containing 257 bags of levy sugar being balance in the stack at the time of physical verification was not in countable position. 75 bags of this stack were got restacked by the squad and lot of spillage was observed. The same was filled up in 1 ½ bags (two gunnies used) Weighing 1 Qts. 1-14-000 and 0-53- 700 (Gross weight in AT gunnies). The spillage of these 1 ½ bags weighing 1-67-700 (gross) did not belong to the stack in which it was found as the same was wet/sweated & discoloured. The result of the PV was recorded and signed by the squad, custodian and joint custodian besides the Depot Officer, CTO depot, New Delhi.

Again, on receipt of a written complaint from the General Secretary of the Food Corporation of India Workers Union dated 20.5.87 (received on 21.5.87), the Regional Squad Comprising of DIV& S), TWO AII(SS), AII(QC), D1(Incharge), Distt. Office, Naraina got issued levy sugar stocks of stack No. FS-7,8 and 9 of Foundary Shed to DSCSC on 30.5.87 and 1. against their valid release orders. The stocks of these three (illegible) issued out except about 35 bags in stack No.F up in two bags weighing Qtls. 1-55-000 as detailed hereunder:-

            STACK NO. N. OF BAGS          QUANTITY (IN QTLS.)
             7           4                   04-01-000
             8           4                   3-97-000
             9           4                   4-09-000
            Total        12                  12-07-000

The spillage of these 12 bags weighing 12-07-000 also did not belong to the stacks in which it was found as the same was wet/sweated and discoloured. The result of the issues and observance of spillage, as above, was recorded and signed by the squad, custodian and joint custodian besides the Depot Officer, CTO depot, New Delhi. The entries of the observance of spillage was duly recorded by the custodians in the stack-wise/Shed-wise register.

The observation of Regional Squad about availability of wet, sweated and discoloured sugar in the sound sugar stacks clearly proves the allegation leveled in the that the sugar stocks which were lying in excess of declared balances under their charge, was poured in sound sugar stocks when the custodians could not whisk away excess sugar from the depot. S/Shri Lalit Prasad, and AG (2) and Prem Sagar, AG-I(D) in their representations dated 29-6-87, 7.7.87 and 28.7.87 admitted the above facts."

4. The respondent-employer examined six witnesses and petitioner

examined two witnesses in the departmental proceedings. The departmental

authorities after considering the entire evidence held the petitioner guilty of

the action of removing evidence of the excess sugar by pouring the excess

sugar in existing stacked and standardized gunny bags stored with the

respondent and this view taken on preponderance of probabilities cannot be

substituted by this Court merely because another view can be possible.

5. At this stage, it would be useful to note the legal position that

the orders passed by the departmental authorities are not interfered by this

Court unless the orders are found to be grossly perverse i.e orders which no

reasonable man can accept. Once there are two views possible of the

situation and on preponderance of probability the departmental authority has

arrived at one conclusion, this Court will not substitute its own conclusion

for that of the departmental authority. It is settled law that this Court does

not sit as an appellate court to re-apprise the findings and conclusions of the

departmental authorities.

6. Another important aspect in this case which has to be noted is

that petitioner and the other officer Sh. Prem Sagar in so many words

admitted the facts in the reply given to the show cause notice, but sought to

put the blame on the senior officer Sh. Bhagnagar, but, except an oral

evidence the petitioner could not lead any substantial evidence to show that

he was directed by Sh. Bhatnagar to empty the excess stocks of sugar in the

illegal gunny bags in the standardized gunny bags which were stacked in the

godown of the respondent. It was therefore an oral statement of the

petitioner and his witness against the position that the charge of the excess

sugar was within the domain of the duties of the petitioner.

7. I may note that the Managing Director while passing the order

in appeal already has in the facts of this case reduced the punishment from

the reduction in pay of three stages not to have cumulative effect instead of

the order of the Disciplinary Authority that the same ought to have

cumulative effect though of course I am quiet curious and surprised as to

why the Managing Director in the appellate order held that there is no

financial loss, inasmuch as, surely excess stock was of value and which

could have been disposed of by the respondent for a price and therefore it

could not have been held by the Managing Director that respondent would

have suffered no financial loss. In fact, for this is one such reason the

Managing Director has reduced the punishment of the petitioner, and

therefore in my opinion, the petitioner is indeed quite lucky to get his

punishment reduced by the Appellate Authority/Managing Director.

8. In view of the above, I do not find any merit in this petition, and

the same is therefore dismissed. No costs.

APRIL 13, 2015                                     VALMIKI J. MEHTA, J
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